Law Times

Sept 30, 2013

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/181038

Contents of this Issue

Navigation

Page 5 of 19

Page 6 September 30, 2013 Law Times • COMMENT u Editorial obitEr By Glenn Kauth Should G20 plaintiffs pay police legal bills? O n its face, Good v. Toronto Police Services Board is a good candidate for having no costs ordered against the plaintiff. Given the controversies surrounding the G20 summit in 2010, it was certainly reasonable to expect a class action stemming from the mass arrests by police that weekend. Sherry Good took up the cause after police kettled her and others in downtown Toronto and held her for hours. They released her without charge. Earlier this year, however, the class action against Toronto police failed and on Sept. 16, the Ontario Superior Court ordered the plaintiff to pay $200,000 for the defendant's legal fees. It's a big amount for a case that had an obvious public interest component. But as Justice Carolyn Horkins found, there were significant problems with the case. In rejecting certification in May, for example, she expressed concerns with "unclear language" in the plaintiff's case that excluded people charged by police. As she pointed out, police do have the right to arrest people if they believe they're about to breach the peace. It's not an offence, however, so it follows that police can arrest people in such circumstances without charge. As Horkins noted, "The fact that an individual was arrested or detained under the Criminal Code but released without charge does not prove that the arrest was unlawful." In considering making a plaintiff in a class action pay the defendant's costs, judges have to consider a number of factors, including the public interest issues involved in the case. In Horkins' view, while there was a clear public interest issue at stake, "the flawed nature of this certification motion dictates that reasonable costs should be ordered." Ultimately, she ordered $200,000 after Toronto police reduced its submission to $370,000 from partial indemnity fees of almost $540,000. The costs order is certainly concerning from an access to justice standpoint, but fortunately Ontario has redress in the form of the Law Foundation of Ontario's class proceedings fund. The fund, which provided financial support for Good's case, levies 10 per cent of any awards or settlements in favour of plaintiffs it assists. So at least there's help for people like Good who face large costs orders. According to the most recent annual report on the fund, it took in $3.1 million in levies in 2011 and paid out $2.2 million in costs to defendants. Cases like Good provide a useful opportunity to debate whether Ontario should follow other jurisdictions in diverging from the rule of having costs follow the event. But given the need to give defendants some relief and the help available to plaintiffs, it's good there's at least somewhere people can turn. While critics may also question the merits of cases such as Good in the first place, it raised important issues that needed airing and Horkins' ruling at least provides meaningful guidance on how to approach such matters in advance of certification in the future. — Glenn Kauth Extreme delays in civil trials an urgent matter BY ALLAN ROUBEN For Law Times u SPEAKER'S CORNER T he subject of access to justice has been receiving much attention of late. It was top of mind at the annual conference of the Canadian Bar Association. Consultation reports on the topic are forthcoming. I would like to focus, however, on a subject that has more practical implications for civil cases currently in our court system: the extreme delay in obtaining a trial date. Civil cases in Ontario run the gamut of disputes that affect the daily lives of Canadians. Whether it be a claimant injured in an accident, an employee let go from work or a commercial claim, the courts are there as an outlet to declare the rights of the parties and resolve the dispute. It is axiomatic that timely conclusion of the matter is of importance. Yet in many jurisdictions in Ontario, the parties must wait anywhere from two to three years to obtain a trial date. This is after all pretrial steps in the proceeding are complete and the parties have certified to the court that they are ready for trial. There is no doubt many cases languish in the system from delays created by the lawyers or parties. The delay referred to here is different. The wait times for trial dates I am speaking about relate to cases that are ready for trial. The problem is particularly acute for trials of 10 days or more in Toronto where wait times of 2-1/2 years or Law Times more are common. London, Ont., and Peel Region are experiencing similar delays. Many of these cases involve catastrophically injured claimants in dire need of services or benefits, the entitlement to which are in dispute. The medical condition of the claimant would simply deteriorate in the meantime. In R. v. Askov in 1990, the Supreme Court of Canada discussed the importance of speedy trials in the context of s. 11(b) of the Charter of Rights and Freedoms. The court stated: "Although the primary aim of s. 11(b) is the protection of the individual's rights and the provision of fundamental justice for the accused, nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That community interest has a dual dimension.  First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.  Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest." The court went on to make an important statement that has equal application to civil cases: "The failure of the justice system to deal fairly, quickly, and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair and balanced criminal justice system simply cannot exist without the support of the community. Continued community support for our system will not endure in the face of lengthy and unreasonable delays." Certainly, there is no similar constitutional right to a speedy trial in civil cases as there is in criminal matters. Nevertheless, it is apparent that the interests at stake in a great many civil cases are of fundamental importance. Without a viable system for the determination of civil claims, the parties will give up on their legal rights or move their cases out of the system entirely. Ontarians can be justifiably proud of the extraordinarily high quality of our judiciary. The onus is now on them to address the unconscionable wait times for trial dates in civil cases. LT uAllan Rouben is a Toronto lawyer, and a director of the Ontario Trial Lawyers Association. He can be reached via e-mail at allan@allanrouben.com or on Twitter at @ AllanRouben. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • clb.lteditor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Advertising Sales . . . . . . . . . . . . . . . . Steffanie Munroe Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . Grace So Advertising Sales . . . . . . . . . . . . . . . . . . . . Joseph Galea ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Grace So .............................................416-609-5838 grace.so@thomsonreuters.com Joseph Galea .......................................416-649-9919 joseph.galea@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - Sept 30, 2013